The United States filed a complaint to condemn the fee title of approximately 13.40 acres of land in the City of Richmond, County of Contra Costa, State of California, commonly known and designated as “Easter Hill,” and containing rock material suitable for building and construction uses, naming the defendants C. Dudley DeVelbiss, J. Philip Murphy and Y. C. Soda, as owners of the property.

The owner defendants, by answer, alleged the fair market value of the land to be the sum of $600,000, and, in addition, prayed for the sum of $43,436 special damages.. Defendants City of Richmond and American Trust Company also answered, but the issues raised in such answers were not tried, and are not involved in the question before-the Court. The complaint alleged that the-land was acquired for the use of the United States Maritime Commission in connection with the construction of shipyards.. Prior to trial, plaintiff sought to amend the complaint to limit the interest sought to be taken to a designated quantity of the rock, material contained in the premises. Subsequently, however, the motion to amend was-abandoned and the cause went to trial before a jury upon the issue of the proper-compensation to be awarded defendant owners for the fee title to the land. Upon the-trial, evidence was introduced by the government in support of its contention that the fair market value of the property as of' September 15, 1943, (the date of taking) did not exceed approximately $55,000;-. whereas defendants introduced testimony to substantiate their claim that the fair market value of the property was in excess of $600,000. The jury returned a verdict fixing the damages in the sum of $306,000.. Plaintiff has moved for a new trial principally on the ground that the evidence-was insufficient to justify the verdict and that the verdict was against law.

“Easter Hill” consisted, at the time of taking, of a number of lots comprising a total area of approximately 13.40 acres located in the City of Richmond and adjacent, to shipyards then in the course of construction and operation by the United States. States Maritime Commission.

More than two years prior to the commencement of the action, defendants began acquiring, by purchase, certain of the lots-included in the 13.40 acres, and, finally, after a period of time, succeeded in obtaining ownership of .all of the lots condemned, at a total cost of approximately $35,000. The parcel as a whole had been known in: the Richmond community for many years, as “Easter Hill” and had never been de~ velopcd for residential purposes, although streets were laid out over and upon the hill; it had mainly been used by sightseers as a point from which to view the surrounding community and for Easter morning religious services.

Defendants had been excavating rock material from the “Hill” for some time and had secured permission from the City of Richmond to reduce the level of certain of the streets to the extent of 50 feet and to remove and dispose of the rock material so excavated from beneath the street levels. Prior to the commencement of the action, the Maritime Commission had been purchasing quantities of the rock material from the defendants and using the same in connection with construction work at the adjacent shipyards. At the time of the commencement of the action, defendants were lowering the level of other streets and removing the rock material, although formal permission from the City Council of the City' of Richmond had not been obtained therefor. For reasons not fully disclosed by the evidence, the Maritime Commission discontinued purchasing rock material from the defendants and instituted this action. Equipment of various kinds was used by the defendants to blast out and remove the rock material. After the taking, the Maritime Commission continued the same type of operations in removing the rock material and making use of it for its purposes in connection with the shipyard construction work.

On motion for new trial, the government contends that the evidence is wholly insufficient to sustain the verdict. Its claim is that the testimony- of defendants’ expert-witnesses clearly indicates that their opinions were based in whole, or substantially in whole, upon conjecture and speculation, namely, an evaluation of profits to be derived in the future from quarrying operations on the land.

In opposition, defendants contend that the factors relied upon by their appraisal experts were proper, and not conjectural or speculative, that such testimony went into the record without objection and that plaintiff introduced the same type of evidence and therefore cannot now be heard to object.

Preliminarily', the Court must consider the extent of its power in passing upon a motion for new trial in a condemnation proceeding.

Plaintiff’s motion for a new trial designates a number of the grounds provided for in Section 657 of the California Code of Civil Procedure. While this Court is bound to follow “the practice, pleadings, forms and modes of proceedings” in condemnation proceedings, existing at the time in state courts of record, as provided in the “Conformity Statute,” 40 U.S.C.A. § 258 , the right to a new trial is not procedural, but is a matter of substance. See: Slocum v. New York Life Ins. Co., 228 U.S. 364 , 33 S.Ct. 523 , 57 L.Ed. 879 , Ann.Cas.1914D, 1029. It may therefore be properly said that, while “the practice, pleadings, forms and modes of proceedings” appertaining to motions for new trial in the Federal Courts in condemnation proceedings should follow like forms in the state courts, nevertheless, the granting or denial of a new trial goes to substance and not to form.

Plaintiff’s notice of intention to move for new trial was filed April 21, 1944. The motion was argued to the Court on May 19, 1944, and on that date submitted upon the later filing by both sides of written briefs. On or about June 20, 1944, the last brief having been filed, counsel called the court’s attention to Sec. 660 of the California Code of Civil Procedure, which provides that “the power of the court to pass on motion for a new trial shall expire sixty (60) days from and after * * * filing of the notice of intention to move for a new trial.” Sec. 660 further provides that non-determination of the motion within the sixty (60) day period shall be deemed a denial thereof. No authorities have been submitted, nor have any been found by us, which consider the question of whether this court is bound by the foregoing code section. Plowever, Section 660 is not procedural in the sense contemplated by 40 U.S.C.A. § 258 . Section 660 limits the power and jurisdiction of the state courts on motions for new trials in all cases and no doubt was enacted to expedite determination of causes in the state courts for reasons deemed necessary or proper by tile State Legislature. No such limitation of power exists in the federal courts. Furthermore, as already pointed out, the granting or denial of a new trial is substantive, not procedural. Slocum v. New York Life Ins. Co., supra. Being satisfied that this is not a “procedural” matter, I do not feel bound by Section 660 of the California Code of Civil Procedure.

That the verdict is merely against the preponderance of the evidence or that the court itself might have arrived at a different result, are not, by persuasive authority, sufficient grounds for the granting of a new trial. Stentor Electric Mfg. Co. v. Klaxon Co., D.C., 30 F.Supp. 425 ; Chesevski v. Strawbridge & Clothier, D.C., 25 F.Supp. 325 ; Weed v. Lyons Petroleum Co., D.C., 294 F. 725 ; 20 R.C.L. 274.

The verdict may be set aside, however, if the Court is satisfied that the evidence as a whole, after according to it the highest probative force to which it is lawfully entitled, is insufficient to support the verdict. Maryland Casualty Co. v. Reid, 5 Cir., 76 F.2d 30 ; Pleasants v. Fant, 22 Wall. 116, 120 , 22 L.Ed. 780 ; Southern Pac. Co. v. Hamilton, 9 Cir., 54 F. 468 .

To the jury in this case was committed the determination of the market value, fairly determined, of defendants’ land at the date of taking. The jury was instructed as to the meaning of market value according to the principles enunciated in United States v. Miller, 317 U.S. 369 , 63 S.Ct. 276 , 87 L.Ed. 336 , 147 A.L.R. 55 , and Olson v. United States, 292 U.S. 246 , 54 S.Ct. 704 , 78 L.Ed. 1236 .

Actual sales could not be used as a basis for ascertainment of market value of the land and hence the testimony of so-called expert appraisers was presented to support defendants’ claimed valuation. Washington Water Power Co. v. United States, 9 Cir., 135 F.2d 541 .

Defendants supported their claim of valuation by the testimony of two expert appraisers — Walter N. Gabriel and F. Bruce Maiden. Mr. Gabriel appraised the fair market value of the land at $622,725.00. and Mr. Maiden appraised it at $687,000. The government produced two expert appraisers —George H. Canfield and George Thomas. Mr. Canfield testified that in his opinion the market value of the land at the time of taking was $55,050, and Mr. Thomas’ opinion was $45,000.

Both Mr. Maiden and Mr. Gabriel were men of wide experience in real estate appraisal and of excellent standing and reputation. The same may be said of Mr. Can-field and particularly of Mr. Thomas, whose experience and services on behalf of both governmental agencies and private enterprise, were perhaps greater than the other three. All the more startling and extraordinary, therefore, is the extreme divergence of appraisements — $45,000 as against $685,000. It cannot be explained by either conservatism on the one hand or, perhaps, over-enthusiasm on the other hand. It is perfectly clear that the standard or yard stick of appraisement applied by defendants’ experts affords the only reasonable explanation. The record clearly discloses that both of the expert witnesses produced by defendants (upon whom rested the onus of proof) based their estimates of market value of this land upon data and factors of a speculative and conjectural nature, which cannot, under well established principles, be taken into account in the determination of market value. Both Mr. Gabriel and Mr. Maiden appraised the land upon the basis of returns inuring to the defendants out of future sales of the rock material. Both made inquiries and investigations with respect to the production, transportation and sale of rock material. Predicated thereon, they estimated the selling price in the future of the rock material and then made deductions by way of expenses for blasting, trucking, general operating expenses, allowance for risks and other unforeseen business contingencies and then, upon that concept, proffered their opinions as to the market value of the property. What they really did was to appraise the present value of the anticipated profits from the sale of the rock material and not the market value of the land itself as of the date of the taking. Such a modus of evaluation is not according to proper standards or criteria legally approved in the determination of market value.

The separate valuation of timber or rock attached to land, or valuations arrived at by a process of multiplying the number of cubic feet or yards by a given price per unit, are not approved bases for evaluation. United States v. Indian Creek Marble Co., D.C., 40 F.Supp. 811 .

“Fixing just compensation for land taken by multiplying the number of cubic feet or yards or tons by a given price per unit has met with almost uniform disapproval of the courts. This is true because such valuation involves all of the unknown and uncertain elements which enter into the operation of the business of producing and marketing the product. It assumes not only the existence, but the continued existence of a stable demand at a stable price. It assumes a stable production cost and eliminates the risks all business men know attend the steps essential to the conduct of a man ufacturing enterprise. It eliminates the possible competition of better materials of the same general description and of the possible substitution of other and more desirable materials produced or possible of production by man’s ingenuity, even to the extent of rendering the involved material unmarketable. It involves the assumption that human intelligence and business capacity are negligible elements in the successful conduct of business. It would require the enumeration of every caitse of business disaster to point out the fallacy of using this method of arriving at just compensation. No man of bttsiness experience would buy property on that theory of value. True it is that quality and quantity have a place in the mind of the buyer and the seller, but the product of these multiplied by a price per unit should be rejected as indicating market value when the willing seller meets the willing buyer, assuming both to be intelligent. Values fixed by witnesses on such a basis are practically worthless, and should not be accepted. To the extent the valuation fixed by any witness contains this speculative element, to the same extent is its value as evidence reduced.” (Emphasis supplied.) United States v. Indian Creek Marble Co., supra, 40 F.Supp. at page 822 ; United States v. Meyer, 7 Cir., 113 F.2d 387 ; United States v. Rayno, 2 Cir., 136 F.2d 376 ; United States v. 5 Acres of Land, etc., D.C., 50 F.Supp. 69 ; United States v. Certain Lands Located in the Towns of, etc., D.C., 52 F.Supp. 314 .

The appraisement of defendants’ experts was, in effect, a valuation of defendants’ so-called rock material business. Such also was improper. Mitchell v. United States, 267 U.S. 341 , 45 S.Ct. 293 , 69 L.Ed. 644 .

In United States v. 5 Acres of Land, supra, the Court said, 50 F.Supp. at page 71 :

In United States v. Meyer, supra, the Court appropriately stated the rule as follows, 113 F.2d at page 397 :

The following excerpts from the testimony of Mr. Gabriel and Mr. Maiden clearly demonstrate that they predicated their opinions upon improper bases:

The Court, in instructing the jury to disregard speculative or conjectural matters, said: “Future income or speculative productive value contemplated is not a measure of compensation. Profits which might be derived from devoting land to a particular purpose depend so much on conditions that cannot be foreseen that they have no competency.” (No exceptions to the court’s charge were taken.)

That the jury, nevertheless, did enter this forbidden field is evidenced by the following incident, which occurred while the jury was deliberating: A request was received by the Court from the jury room reading: “We require Mr. Hussey’s figures of cubical content excluding certain lots not owned by the defendants.” By consent of counsel, the Court read the following figures from the record to the jury: “680,732 cubic yards.” The verdict of $306,000 appears to have been arrived at by multiplying the cubical content by a price of 450 per cubic yard.

The testimony of the defendants’ appraisers was wholly insufficient in law to sustain the verdict and I find it my clear duty, in the interests of justice, to so hold.

Defendants, while not admitting the insufficiency of their own experts’ testimony, assert that plaintiff’s expert witnesses proceeded along the same lines in arriving at their determination of value. Be that as it may, if the testimony offered on behalf of the defendants, upon whom rested the burden of proof is insufficient as a matter of law, it is immaterial that the plaintiff erred in like manner, if it did so err.

It is also contended by the defendants that, granted the insufficiency of the defendants’ expert testimony, nevertheless it went in without objection in any form and both sides submitted the cause to the jury without raising any question as to the legal sufficiency of the evidence.

The contention is not meritorious. The evidence being insufficient in law, the infirmity is not cured by silence. If at any stage of the proceeding, the invalidity of the evidence appears, the Court is bound in the interests of justice to so treat it. Goehrig v. Stryker, C.C., 174 F. 897 , at page 904; Harding v. Robinson, 175 Cal. 534, 540 , 166 P. 808 ; Chesapeake Transit Co. v. Walker & Son, C.C., 158 F. 850 ; American Coal Briquetting Co. v. Minneapolis. St. P. & S. S. M. R. Co., 41 N.D. 381 , 170 N.W. 568, 570 .

Furthermore., “At common law and by statute, the federal District Judge is charged with the duty of granting a new trial in a jury case where, in his opinion, it went unjustly and injuriously out of bounds." Maryland Casualty Co. v. Reid, supra, 76 F.2d at page 33 . 28 U.S.C.A. § 391 .

The motion for new trial is granted.